19 January 2012 9:15 PM

Obama Rex

Last year, the received wisdom was that Washington DC was paralyzed by gridlock. The President and the Speaker of the House, John Boehner, were locked in an unending struggle that would only be broken when the American people pulled them apart in November 2012, deciding which direction the country would take. In the last few months, however, the President has pushed forward his agenda in uncompromising fashion, regaining much of the political initiative. The only problem is that he has done so in a way that abuses his powers. 2012 may therefore prove to be the high water mark of the Imperial Presidency.

He new attitude really hit home on January 4th. The US Constitution requires that senior officials in the Executive branch be appointed only with the "advice and consent" of the Senate. Many such appointees are controversial, and are often filibustered. The Constitution, however, provides for the President to fill vacancies temporarily when the Senate is in recess (the actual wording relates to vacancies "that may happen during the recess," but since 1832 this has been interpreted to mean "happen to exist.") So Presidents often make use of this power to appoint controversial nominees, such as when President George W. Bush made John Bolton Ambassador to the United Nations, much to the discomfort of the Dictators' Club in New York. The Democrat-controlled Senate then figured out a way to stymie any further such appointments, by essentially refusing to go into formal recess. They would hold pro forma sessions every three days to keep the process going, and would occasionally use these sessions to pass legislation by unanimous consent.

This practice has continued under President Obama, as Republicans use their power in turn to block his controversial nominees. A prime example was Elizabeth Warren, who was meant to be the first director of the Consumer Financial Protection Bureau, a new financial regulator with unprecedented powers and lack of accountability. Recognizing that his nominee was unlikely to be confirmed by the Senate, the President appointed her to two offices that did not require Congressional approval, a move that was condemned then as an unconstitutional circumvention of checks and balances. Eventually, Warren moved on, and in July 2011 the President nominated a new candidate, former quiz champion and Attorney General of Ohio, Richard Cordray. His nomination also appeared likely to go nowhere.

In January, however, the President simply ignored the pro forma sessions of the Senate and simply appointed Cordray to the job. On the same day, he appointed three new members to the National Labor Relations Board. The official justification for the move appeared to be that the Senate had failed in its duty to advise the President, and he was therefore acting in the face of an "obstructionist" Congress that was demeaning the spirit of the Constitution. This was confirmed when the Justice Department's Office of Legal Counsel eventually issued its opinion on the merits of the action, which some commentators were quick to note was dated January 6th (usefully summarized here).

Unfortunately, the "obstructionist" argument, while it has some validity in the case of Cordray, does not hold any water in the case of the three NLRB appointments. The President only submitted those names to the Senate on December 15th, 2011. No cloture vote was ever held on whether the nominations could be considered. In other words, the President did not give any reasonable time to the Senate to provide its advice and consent. If the Senate was ignoring the spirit of the Constitution with the Cordray nomination, the President treated it with outright contempt in his NLRB appointments.

On January 12, he went further, demanding the power to reorganize and consolidate federal government departments to make them more powerful, in a manner reminiscent of European governments (I wrote more on that subject here).

The first indication of the President's new attitude came on October 31st last year. He started issuing Executive Orders pre-empting legislation that Congress was considering, such as directing the Food and Drug Administration to force manufacturers to increase their supply of prescription drugs. He told the nation, "If Congress won't act, I will." Since then, he has been issuing Executive Orders and new regulations at an increasing rate, using authority delegated by previous Congresses to substitute for legislation.

The President's contempt for Congress is equally visible when Congress does act. As part of the deal to extend payroll tax cuts for two months, Congress required him to come to a decision on whether or not to give the go-ahead to the much-delayed KeystoneXL pipeline by mid-February. Yesterday, angering mid-westerners, oil companies, and labor unions alike, but to the delight of the green lobby, he imperiously rejected the pipeline proposal, claiming that Congress had not given him enough time to reach the decision, when the proposal had been originally given the go ahead by the State Department in March 2008.

In all of this, President Obama has displayed a disdain for the separation of powers perhaps not seen since Theodore Roosevelt transformed the Presidency over a hundred years ago. Given that Roosevelt was a self-described progressive and a man described by biographers as utterly sure of himself and his actions, the comparison seems apt. According to a new biography of the first family called The Obamas, by New York Times reporter Jodi Kantor, the President has an extremely high opinion of himself. “Obama had always had a high estimation of his ability to cast and run his operation,” Kantor says. “When David Plouffe, his campaign manager, first interviewed for a job with him in 2006, the senator gave him a warning. ‘I think I could probably do every job on the campaign better than the people I’ll hire to do it,’ he said."

The President now stands above even the Constitution, believing he can do a better job than Congress when it comes to the legislative power. In some ways, he reminds me of Tony Blair, whose willingness to drive a coach and horses through the British constitution was matched only by the inability of his opponents to stop him.

Obama's opponents, however, are armed with powers Blair's opponents did not have. There is legislation that has to be passed, such as another extension of the payroll tax cuts. Congress could include in that a direction to the Federal Energy Regulatory Commission to approve the Keystone XL pipeline, and the President would find it very hard to veto that legislation. The courts may well weigh in soon on the constitutionality of his recess appointments. Finally, the people will be asked in November whether they want a President with as much power as Obama has accrued to himself. If Americans hold true to the spirit of the Constitution, it is likely that they will reject that option. Chacks and balances are important to Americans, and if the President has forgotten that, he has done so at his own peril.

Share this article:

Comments

You can follow this conversation by subscribing to the comment feed for this post.

Post a comment

Comments are moderated, and will not appear on this weblog until the moderator has approved them. They must not exceed 500 words. Web links cannot be accepted, and may mean your whole comment is not published.

Iain Murray

Iain Murray is Vice President for Strategy at the Competitive Enterprise Institute in Washington DC. He is the author of the best-selling book on environmental policy, "The Really Inconvenient Truths," and more recently the excoriating “Stealing You Blind: How Government Fatcats Are Getting Rich Off of You” (both published by Regnery). He heads the Center for Economic Freedom at CEI and specializes in finance, trade, labor, international policy, and science and technology policy. He is also an expert on the role of government, the EU and the UK, and on the role of liberty in political thought.

He writes regularly for print and online sources, his CEI articles having appeared in The New York Post, Investors Business Daily, the Financial Times, the Wall Street Journal, the Washington Examiner and many other newspapers. Mr. Murray has a regular column on the American Spectator website. He has appeared on Fox News, CNN Headline News, the BBC and Al-Jazeera among other broadcast appearances. He has also given testimony to the US Senate. A veteran blogger, Mr. Murray contributes to National Review Online's Corner and several other blogs.

Before coming to CEI, Mr. Murray was Senior Analyst and then Director of Research at the Statistical Assessment Service, a nonpartisan nonprofit that looked at how scientific and statistical information were used or misused by the media and policy-makers.

Originally from the United Kingdom, Mr. Murray immigrated to the US in 1997, after having worked at the British Department of Transport, advising Ministers on railroad privatization, the role of private finance in infrastructure investment and the role of transportation in the economic development of London.

Mr. Murray is also a Visiting Fellow of the British think tank The Adam Smith Institute. Mr. Murray holds a BA and MA from the University of Oxford, an MBA from the University of London and the Diploma of Imperial College of Science, Technology and Medicine.